RANDOLPH, Justice, for the Court:
¶ 1. The "Last Will and Testament" of Ted Watkins, dated December 6, 2000, named his ex-stepdaughter, Diana Kinsey, to serve as the executrix of his estate and "will[ed], devis[ed], ... and bequeath[ed] all of [his] property" to her.
¶ 2. On October 4, 2002, Watkins was diagnosed with silicosis. On December 26, 2002, a mass-tort, personal-injury suit against various silica-related entities, styled Rudolph Spencer, et al. v. Pulmosan Safety Equipment, et al., was filed in the Circuit Court of Humphreys County, Mississippi. The plaintiffs in that suit asserted claims of negligence, gross negligence, strict products liability, breach of warranties, and conspiracy against the defendants; alleged "silica-related injuries[;]"
¶ 3. Watkins died on July 28, 2003.
¶ 4. On October 30, 2003, the Chancery Court of Forrest County, Mississippi ("chancery court"), entered an "Order Admitting Will to Probate and for Issuance of Letters Testamentary." The Order appointed Kinsey as the executrix of Watkins's estate, pursuant to Watkins's "Last Will and Testament," to perform the duties and obligations required by that position. Kinsey, as the executrix of Watkins's estate, never moved to be substituted as a real party in interest in Spencer.
¶ 5. Subsequently, the federal court entered an Order remanding Spencer to the Circuit Court of Humphreys County due to lack of subject-matter jurisdiction. On January 30, 2006, the Circuit Court of Humphreys County entered an "Agreed Order of Dismissal Without Prejudice" in Spencer, which included the following defendants: Clemco Industries Corporation; Clark Sand Company, Inc.; Hanson Aggregates, Inc.; Humble Sand & Gravel, Inc.; Pangborn Corporation; Parmelee Industries, Inc.; Precision Packaging, Inc.; and Southern Silica of Louisiana, Inc. (collectively, "Forman Perry Defendants"). (Emphasis added.) On April 27, 2006, the Circuit Court of Humphreys County entered an "Agreed Order of Dismissal
¶ 6. On April 27, 2007, Kinsey first filed a wrongful-death action in the circuit court. The Complaint was styled Diana Kinsey, on behalf of the Wrongful Death Beneficiaries of Ted Watkins, Deceased v. Pangborn Corporation, et al.
¶ 7. Between August 2007 and November 2007, various defendants filed their Answers and Defenses. These pleadings contended, inter alia, that the claims asserted by Kinsey were barred by applicable statutes of limitations and that Kinsey lacked standing to commence a wrongful-death action.
¶ 8. On December 13, 2007, the circuit court entered an "Agreed Initial Discovery Order" which provided, in pertinent part, that Kinsey would have sixty days to respond to the defendants' "Initial Master Set of Interrogatories and Requests for Production of Documents" ("Master Set"). On December 18, 2007, the defendants propounded the Master Set to Kinsey, with responses due February 18, 2008. After receiving no responses to the Master Set, defendant MSA sent a letter to counsel for Kinsey which provided that those responses were "extremely overdue" and requested that Kinsey "respond to this discovery immediately to avoid involvement by the [c]ourt."
¶ 9. Thereafter, the Forman Perry Defendants and MSA filed separate "Motions for Summary Judgment," joined by Empire Abrasive, asserting that applicable statutes of limitations barred Kinsey's suit. According to the Forman Perry Defendants, "[a]ny wrongful death claims would have expired three years from [July 28, 2003] or July 28, 2006." As the present action was commenced on April 27, 2007, the defendants contended that Kinsey had "missed the statute of limitations." The defendants further asserted that "no statutory `tolling'" existed because of the "Agreed Order of Dismissal Without Prejudice" in Spencer. (Emphasis added.) Finally, the defendants maintained that Section 15-1-69 (the "saving statute") was inapplicable "[b]ecause Kinsey was not a party to" Spencer and this is "a new action for a new cause by a new plaintiff."
¶ 10. Following a hearing, the circuit court entered summary judgment, dismissing all defendants with prejudice. The circuit court determined that "[t]here is no dispute that this is a wrongful death action." (Emphasis added.) The circuit court concluded, inter alia, that the three-year statute of limitations barred this wrongful-death action because it "accrued on July 28, 2003," and Section 15-1-69 was inapplicable since the action "is not a re-filing of a previously avoided or defeated matter ..., nor was it commenced by the prior plaintiff (Watkins) or his executor for the same cause." (Emphasis added.)
¶ 11. If the statute of limitations was not waived, and if the "saving statute" is inapplicable, then the statute-of-limitations issue is case-dispositive. As such, this Court addresses only whether this wrongful-death action was barred by the statute of limitations.
¶ 12. Preliminarily, we address the nature of this action, a wrongful-death case. This Court has stated that Mississippi Code Section 11-7-13, Mississippi's wrongful-death statute, "encompasses all claims—including survival claims which could have been brought by the decedent,[
¶ 13. The waiver, vel non, of an affirmative defense is subject to an abuse-of-discretion standard of review. See Jones v. Fluor Daniel Servs. Corp., 32 So.3d 417, 421 (Miss.2010).
¶ 14. In the Complaint, Kinsey failed to state her relationship to Watkins, to reveal that she had been the executrix of Watkins's estate, or to name Watkins's estate as a plaintiff. In Answers and Defenses, the defendants raised, inter alia, the affirmative defense of the statute of limitations. Following the "Agreed Initial Discovery Order," Kinsey failed to respond to the Master Set when due, failed to respond to subsequent letter requests of the defendants, failed to respond to the defendants' "Motions to Compel," and responded only after the circuit court entered an "Order Compelling Discovery Responses." Within two months after receipt of the compelled responses, each defendant either filed or joined in a motion for summary judgment.
¶ 15. This Court has stated that a "long delay" is not enough, "standing alone," to constitute waiver of an affirmative defense. MS Credit Center, Inc. v. Horton, 926 So.2d 167, 180 (Miss.2006)). Ordinarily, there must be "a substantial and unreasonable delay in pursuing the right, coupled with active participation in the litigation process," before waiver will be found. Id. The Complaint was insufficient to decipher Kinsey's status in relation
¶ 16. "`[T]he application of a statute of limitations is a question of law,' which we review de novo." Caves, 991 So.2d at 146 (quoting Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001)).
¶ 17. The applicable statute of limitations provides that "[a]ll actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after." Miss.Code Ann. § 15-1-49(1) (Rev.2003). But in a wrongful-death suit, where multiple claims must be brought in one suit (see ¶ 12 supra), if "death is not an immediate result of the tort, the limitation periods for the various kinds of claims may not begin to run at the same time." Caves, 991 So.2d at 150. For instance, Watkins's "survival-type" claims actually accrued on the date of discovery of the injury. See Lincoln Elec. Co. v. McLemore, 54 So.3d 833, 836 (Miss.2010) (quoting Angle v. Koppers, Inc., 42 So.3d 1, 5 (Miss.2010)) ("the plain language of Section 15-1-49 supports an interpretation `that the cause of action accrued upon discovery of the injury, not discovery of the injury and its cause.'") (emphasis in original).
¶ 18. The "survival-type" claims accrued upon Watkins's diagnosis with silicosis on October 4, 2002. Any "wrongful-death" claims accrued, at the latest, on the date of Watkins's death on July 28, 2003. See Clark Sand, 60 So.3d at 161; Caves, 991 So.2d at 148. Therefore, in the absence of tolling, the statute of limitations for "survival-type" claims ran on October 4, 2005 (and for "wrongful-death" claims, on July 28, 2006). Spencer was filed within the statute of limitations on December 26, 2002. However, no party was substituted for the deceased Watkins. In Spencer, an "Agreed Order of Dismissal Without Prejudice" was entered as to the Forman Perry Defendants on January 30, 2006, and as to "each and every Defendant" on April 27, 2006. (Emphasis added.) "[T]he filing of a complaint does not toll the statute of limitations when the plaintiff voluntarily dismisses the suit." McLemore, 54 So.3d at 839 (quoting Koestler v. Miss. Baptist Health Sys., Inc., 45 So.3d 280, 283 (Miss.2010)). Based thereon, when Spencer was dismissed without prejudice, "its pendency did not serve to toll the statute of limitations on ... a wrongful-death action for [Watkins's] death." Clark Sand, 60 So.3d at 162. As no wrongful-death action was filed until April 27, 2007, all "survival-type" claims, as against all defendants, were time-barred, unless such "survival-type" claims were "for the same cause" as Watkins's Spencer claim. Id. (quoting Miss.Code Ann. § 15-1-69 (Rev.2003)). If that was the case, then the dismissal of Spencer "as to a matter of form" implicated Section 15-1-69, the "saving statute." See Clark Sand, 60 So.3d at 162 (quoting Miss.Code Ann. § 15-1-69 (Rev.2003)). Section 15-1-69 provides a living plaintiff, "or `his executor or administrator' in the event of his death, one year to refile his claim as a `new action for the same cause' in an appropriate
¶ 19. In Clark Sand, this Court held that:
Clark Sand, 60 So.3d at 162 (emphasis added). When the present action was filed, Watkins's estate had been closed, and Kinsey had been discharged as executrix thereof, for nearly three years. Kinsey's Complaint was not filed by Kinsey as the executrix of Watkins's estate. See Miss.Code Ann. § 15-1-69 (action under the "saving statute" is to be filed by the decedent's "executor or administrator...."). The Complaint was styled Diana Kinsey, on behalf of the Wrongful Death Beneficiaries of Ted Watkins, Deceased. It is undisputed that Kinsey was never "substituted as the party plaintiff" in Spencer after Watkins died, but before Spencer was dismissed. Clark Sand, 60 So.3d at 162. Under such circumstances, this Court concludes that the present suit was a "new and independent wrongful-death action" to which Section 15-1-69 does not apply. Id. Therefore, this wrongful-death suit is barred by the statute-of-limitations.
¶ 20. As Kinsey's claims were barred by the statute of limitations, this Court affirms the "Orders Granting Summary Judgment" entered by the Circuit Court of Harrison County, Mississippi, First Judicial District, dismissing all defendants with prejudice.
¶ 21.
WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.
Clark Sand Co., Inc. v. Kelly, 60 So.3d 149, 153 (Miss.2011) (emphasis added). Section 15-1-69 "allows a plaintiff whose claim is dismissed for a `matter of form' one year to refile his or her claim in an appropriate venue of his or her choice." Id. at 153 n. 3 (citing Miss.Code Ann. § 15-1-69 (Rev.2003)) (emphasis added).
The other defendants included Lone Star Industries, Inc.; Specialty Sand Company; American Optical Corporation; Empire Abrasive Equipment Corporation ("Empire Abrasive"); Mine Safety Appliances Company ("MSA"); Pearl Sands, Inc.; Pearl Specialty Sands, Inc.; Schmidt Manufacturing, Inc.; and Bob Schmidt, Inc. (collectively, "Other Defendants").